Arizona’s Abortion Ban Tees Up Legal Battle Over Ballot Measure

The Arizona Supreme Court ruling this week reestablishing a Civil War-era abortion law shifts the fight for abortion rights in the state to a pending initiative on the ballot this fall, an effort that could ultimately face its own legal challenges.

Organizers behind a proposed constitutional amendment in Arizona to establish a “fundamental right” to abortion before viability—roughly 24 weeks of pregnancy—say the proposal is more pivotal than ever after the state’s top court ruled April 9 that an 1864 law criminalizing nearly all abortions could take effect. That law, which makes aiding or performing most abortions a felony punishable with two to five years of prison time, is expected to put abortion care on hold throughout the state.

Jake Warner, senior counsel for the Christian legal group Alliance Defending Freedom who argued the case before the court, called the ruling a recognition “that life is a human right.”

Organizers for the ballot initiative plan to “fight like hell to restore abortion rights in Arizona this November,” according to Chris Love, a spokesperson for Arizona for Abortion Access. The group announced April 2 that it had collected more than 500,000 signatures in support of the proposal—surpassing the nearly 384,000 the state requires by July 3 to get a spot on the ballot.

Reproductive health analysts and lawyers say that if voters ultimately approve the ballot measure, the constitutional amendment would supersede any state statutes regulating abortion, including the 1864 law.

Democrats have so far been successful in mobilizing voters to approve abortion rights measures in states like Ohio and Michigan, and are hoping to build on the success this year in Arizona, Florida, and as many as 11 other states.

But legal analysts say abortion rights votes are likely to see legal challenges from anti-abortion groups that argue embryos and fetuses should have the full rights of persons under the law.

“We’ve started to see signs that groups like ADF are going to argue that there’s state constitutional fetal rights that would conflict with ballot initiatives,” Mary Ziegler, a professor at the University of California, Davis School of Law, said in an interview.

Ballot Campaign

Reproductive health groups and organizers are redoubling their energy behind the ballot initiative in Arizona, seeing it as the most surefire way to restore abortion access and prevent physicians from facing criminal prosecution.

A ballot vote in favor of abortion rights “would certainly undo this ruling in a very good way,” Aadika Singh, an attorney with the Public Rights Project who represented Pima County Attorney Laura Conover in the state Supreme Court case, said in an interview.

Arizona Attorney General Kris Mayes, a Democrat, said she doesn’t plan to prosecute any patient or doctor under the 1864 law. But ADF’s Warner told reporters in a call April 9 that individual county prosecutors are “free to enforce the law as written.” Republican Yavapai County Attorney Dennis McGrane had intervened in the case in support of upholding the 19th century abortion ban.

Without a constitutional amendment superseding this law, “the potential consequences of providing abortion” are “going to have an incredibly chilling effect,” said Laura Portuondo, an assistant professor at the University of Houston Law Center who specializes in reproductive and constitutional law.

“If the Arizona voters pass this constitutional amendment, this ruling would be nullified” and “there wouldn’t be any way to enforce that 1864 law,” Portuondo said in an interview.

Singh said a constitutional amendment would also override an Arizona state statute that gives an “unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state.”

As Arizona looks to join Florida, Maryland, and New York with abortion rights measures certified for the 2024 ballot, an opposition campaign called It Goes Too Far is encouraging Arizona voters to not sign onto the abortion rights measure, arguing it would dismantle “common sense safety precautions that keep girls and women safe.”

Future Litigation

A vote in favor of Arizona’s abortion rights measure is not likely to go unchallenged, legal analysts say, based on previous responses to statewide votes and the anti-abortion movement’s argument that embryos and fetuses have constitutional rights.

ADF’s Warner said in an email that the legal group was “hopeful that Arizonans will reject the extreme pro-abortion ballot initiative in November,” but wouldn’t comment on any of the group’s plans if voters approve the amendment.

Singh said some sort of legal challenge is all but certain, noting “we have seen very aggressive litigation and other advocacy efforts from anti-choice groups.”

In Michigan, a lawsuit led by Right to Life of Michigan seeks to undo abortion protections approved by a majority of the state’s voters in November 2022. The groups behind the lawsuit argue the statewide vote created an unconstitutional “super-right” to reproductive freedom.

Florida’s attorney general also recently attempted to challenge language in the abortion rights measure there, arguing the proposed amendment was overly broad and misleading to voters on the potential impact.

“So far we’ve seen conservatives do the things they were doing in Florida, which is essentially to say voters are going to be tricked into voting for this thing, because they’re not going to understand what it means and it’s actually much broader than it appears,” Ziegler said.

Another looming threat is the possibility that anti-abortion groups argue a state constitutional amendment protecting abortion access is “conflicting with some right to life that they’re reading into the state constitution,” Portuoundo said.

Arizona justices didn’t directly address the issue of fetal personhood in their ruling this week, but a majority of Florida justices in approving the ballot measure in that state indicated they could find fetal personhood rights inside of the state’s existing constitutional provisions.

“The tricky thing with all ballot initiatives is if they pass, their meaning will depend on the same state supreme court,” Ziegler said.